I thank James Anderson for having published a version of this column, “Allegiance to the Queen Means Allegiance to Canada“, on National News Watch: Featured Ink.
By James W.J. Bowden and Cara Des Granges
Permanent residences in Canada must swear or affirm loyalty to the Queen of Canada in order to become naturalized Canadian citizens. Military personnel, parliamentarians, lawyers, judges, and cabinet ministers must swear a similar oath (or make a solemn affirmation) before assuming their offices and duties. The Governor General commissions the Prime Minister, in the Queen’s name, to form a government, which means that the Ministry derives its authority to govern from the Crown and must subsequently maintain the confidence of the Commons.
Candidates for naturalized citizenship must swear or affirm the following, as per the Citizenship Act:
I swear (or affirm) that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, Queen of Canada, Her Heirs and Successors, and that I will faithfully observe the laws of Canada and fulfil my duties as a Canadian citizen.
Charles Roach, a lawyer from Toronto who immigrated to Canada in 1955, launched the first legal challenge against this oath or affirmation in the 1990s; he contended that the oath violates an anti-monarchist’s Charter right to freedom of conscience under s. 2(a). His three challenges reached the Federal Court in 1994 and the Ontario Superior Court of Justice in 2007 and 2009. The courts have thus far. In Roach v Canada from 1994, the Federal Court ruled:
The appellant can hardly be heard to complain that, in order to become a Canadian citizen, he has to express agreement with the fundamental structure of our country as it is. […] He cannot use his dream of a republican Constitution as a legal basis for denying the legitimacy of the present form of government. […]
In addition, the Federal Court also upheld the constitutionality of the military’s oath of allegiance to the Queen in Chainnigh v Canada in 2008. Roach passed away last year, but his case has continued with three other anti-monarchist applicants.
The “Queen of Canada” has an objective legal meaning; Elizabeth II personifies the Crown of Canada and represents the country in both political senses of the word (the State and the people), as well as lawful executive and legislative authority. In 1977, the Parliament of Canada added the phrase “Queen of Canada” to the oath in order to emphasize the Queen of Canada is a separate legal person from the Queen of the United Kingdom and the Queen of Australia; consequently, Canada is a sovereign, independent state. (The previous wording of the oath referred to “Queen Elizabeth II” without her official Canadian titles). The Crown is not a foreign institution – it has always formed an integral part of Canada’s constitution and heritage. The Crown of Canada is also a corporation sole, and we swear or affirm our allegiance to the legal person such that an oath to Queen Elizabeth II automatically applies also to Charles III, William V, and eventually to the new-born and yet unnamed Prince Cambridge.
The oath or affirmation of allegiance to the Queen therefore reflects Canada’s constitutional monarchy and legal-constitutional position. Section 9 of the Constitution Act, 1867 vests executive authority in the Queen, and section 17 establishes the Crown-in-Parliament as the Queen, Senate, and House of Commons. A bill only becomes law upon Royal Assent, and an order-in-council or proclamation is only promulgated with the Crown’s approval. In addition, the oath of allegiance that all parliamentarians must swear or affirm before taking their seats appears in the fifth schedule to the Constitution Act, 1867. The basic form of the oath therefore forms part of the Constitution of Canada. The other oaths are statutory, but flow from the Constitution.
Similarly, in order to become a naturalized citizen of the United States, one must “bear true faith and allegiance” to “the Constitution and the laws of the United States”, because that document forms the basis of all legislative, executive, and judicial authority in and over the United States of America. Americans do not pledge allegiance to the United States itself in order to assume public offices and duties and naturalized citizenship. (By tradition, American students pledge allegiance to their flag, Old Glory, through the “Pledge of Allegiance” does not enjoy the same official, legal status as formal oaths of office, which all refer to the Constitution of 1787). So even if prospective citizens pledged allegiance to the Constitution of Canada, they would still necessarily pledge allegiance to the Crown because it forms an integral part of the Constitution.
In the oath for naturalized citizenship, the reference to “observing the laws of Canada” in the second main clause flows naturally from the first main clause, because all laws are passed in the Queen’s name. By swearing or affirming to “faithfully observe the laws of Canada,” the naturalized citizen pledges to observe the Queen’s laws. This second main clause depends on the first and cannot be taken in isolation. In contrast, an ambiguous pledge to “Canada” alone lacks an objective grounding in law and the constitution and could refer to either the country as in State or as in patria, or to the people, or to be left to each individual’s own interpretation.
The appellants of the current case argue that they should be able to swear or oath or make an affirmation to Canada alone, and not to the Queen of Canada. In reality, “Allegiance to the King means allegiance to the Country,” as Beauchense’s Rules and Forms of the House of Commons of Canada states. More recently, O’Brien and O’Bosc have reiterated the same principle:
When Members swear or solemnly affirm allegiance to the Queen as Sovereign of Canada, they are also swearing or solemnly affirming allegiance to the institutions [that] the Queen represents, including the concept of democracy.
Furthermore, Canada’s citizenship guide, Discover Canada: The Rights and Responsibilities of Citizenship, explains:
In Canada, we profess our loyalty to a person who represents all Canadians and not to a document such as a constitution, a banner such as a flag, or a geopolitical entity such as a country. In our constitutional monarchy, these elements are encompassed by the Sovereign (Queen or King). It is a remarkably simple yet powerful principle: Canada is personified by the Sovereign just as the Sovereign is personified by Canada.
The oath should retain this reference to the Queen of Canada because in any country an oath should represent the present legal-constitutional position and must be universal – the oath does not reflect a normative aspiration for what republicans want the constitution to become. As long as Canada remains a constitutional monarchy, pledging allegiance to the Sovereign will continue to mean pledging allegiance to the country. As Justice McDonald ruled in Roach v Canada of 1994:
The Constitution, as it exists at any given time, cannot be unconstitutional, nor can it be constitutionally burdensome. It is itself the ultimate criterion by which all laws, actions and discriminatory burdens are measured.
We should regard this case for what it is: an attempt to chip away at the legal-constitutional framework and historical tradition of Canada through republicanism by stealth. Given that the Federal Court has upheld the constitutionality of the civil and military oaths of allegiance to the Queen in 1994 and 2008, respectively, the provincial court should dismiss the case.